Citation Nr: 0729290
Decision Date: 09/18/07 Archive Date: 10/01/07
DOCKET NO. 06-14 760 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to an increased evaluation for shin splints
of the right lower extremity, currently evaluated as 20
percent disabling.
2. Entitlement to an increased evaluation for shin splints
of the left lower extremity, currently evaluated as 20
percent disabling.
3. Entitlement to an earlier effective date prior to May 2,
2005, for the assignment of an evaluation of 20 percent for
shin splints of the right lower extremity.
4. Entitlement to an earlier effective date prior to May 2,
2005, for the assignment of an evaluation of 20 percent for
shin splints of the left lower extremity.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
S. Heneks, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1993 to May
1996.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from an October 2005 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Little Rock, Arkansas, which granted an increase of 20
percent disabling for both disabilities on appeal, effective
May 2, 2005. The veteran filed a notice of agreement (NOD),
received in November 2005, in which he disagreed with the
October 2005 decision and sought increased ratings and
earlier effective dates. On a claim for an increased rating,
the claimant will generally be presumed to be seeking the
maximum benefit allowed by law and regulation, and it follows
that such a claim remains in controversy where less than the
maximum available benefit is awarded. AB v. Brown, 6 Vet.
App. 35, 38 (1993). Since the grant of the 20 percent rating
is not a full grant of the benefits sought for the
disabilities on appeal, and since the veteran did not
withdraw his claims of entitlement to a higher ratings, the
matters remain before the Board for appellate review.
The Board also notes that the veteran withdrew his appeal for
an increased rating for bilateral pes planus in an October
2005 statement. 38 C.F.R. § 20.204.
In his substantive appeal to the Board, received in May 2006,
the veteran requested a travel board hearing. In April 2007,
the veteran presented testimony at a personal hearing
conducted at the Little Rock RO before Kathleen K. Gallagher,
a Veterans Law Judge (VLJ) who was designated by the Chairman
to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c)
(West 2002) and who is rendering the determination in this
case. A transcript of this personal hearing is in the
veteran's claims folder.
FINDINGS OF FACT
1. The veteran's shin splints of the left lower extremity
were not shown to be productive of malunion of the tibia and
fibula with marked knee or ankle disability.
2. The veteran's shin splints of the right lower extremity
were not shown to be productive of malunion of the tibia and
fibula with marked knee or ankle disability.
3. The record does not reflect that it was factually
ascertainable prior to May 2, 2005, that the veteran's
service-connected shin splints of the right lower extremity
were productive of malunion of the tibia and fibula with
moderate knee or ankle disability.
4. The record does not reflect that it was factually
ascertainable prior to May 2, 2005, that the veteran's
service-connected shin splints of the left lower extremity
were productive of malunion of the tibia and fibula with
moderate knee or ankle disability.
CONCLUSIONS OF LAW
1. The criteria for an evaluation in excess of 20 percent
for shin splints of the right lower extremity have not been
met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2006); 38 C.F.R.
§§ 3.102, 3.321, 4.1, 4.7, 4.40, 4.45, 4.59, 4.7, and 4.71a,
Diagnostic Code 5262. (2006).
2. The criteria for an evaluation in excess of 20 percent
for shin splints of the left lower extremity have not been
met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2006); 38 C.F.R.
§§ 3.102, 3.321, 4.1, 4.7, 4.40, 4.45, 4.59, 4.7, and 4.71a,
Diagnostic Code 5262 (2006).
3. The requirements for an earlier effective date prior to
May 2, 2005, for the assignment of an evaluation of 20
percent for service-connected shin splints of the right lower
extremity have not been met. 38 U.S.C.A. §§ 1155, 5101, 5110
(West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.1-4.14,
4.40, 4.45, 4.71a, Diagnostic Code 5262 (2006).
4. The requirements for an earlier effective date prior to
May 2, 2005, for the assignment of an evaluation of 20
percent for service-connected shin splints of the left lower
extremity have not been met. 38 U.S.C.A. §§ 1155, 5101, 5110
(West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.1-4.14,
4.40, 4.45, 4.71a, Diagnostic Code 5262 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Upon receipt of a complete or substantially complete
application, VA must notify the claimant of the information
and evidence not of record that is necessary to substantiate
a claim, which information and evidence VA will obtain, and
which information and evidence the claimant is expected to
provide. 38 U.S.C.A.
§ 5103(a). VA must request that the claimant provide any
evidence in the claimant's possession that pertains to a
claim. 38 C.F.R. § 3.159.
Prior to initial adjudication of the veteran's claims, a
letter dated in June 2005 fully satisfied the duty to notify
provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002). The letter advised the veteran what information and
evidence was needed to substantiate the claims decided herein
and what information and evidence must be submitted by him,
namely, any additional evidence and argument concerning the
claimed conditions and enough information for the RO to
request records from the sources identified by the veteran.
In this way, he was advised of the need to submit any
evidence in his possession that pertains to the claims.
Finally the letter advised him what information and evidence
would be obtained by VA, namely, records like medical
records, employment records, and records from other Federal
agencies.
The Board acknowledges that the RO did not provide the
veteran with notice of the information or evidence needed to
substantiate his claims for earlier effective dates prior to
the rating decision in October 2005, which increased his
evaluations to 20 percent effective from May 2, 2005. The
veteran subsequently filed his NOD in November 2005 in which
he disagreed with the effective dates for the assignment of
the evaluations of 20 percent for shin splints of the right
lower extremity and shin splints of the left lower extremity.
Thus, the appeal of the assignment of the effective dates
arises not from a "claim" but from a NOD filed with the RO's
initial assignment of an effective dates. Nevertheless, the
RO did send the veteran a March 2006 statement of the case
(SOC) in connection with the issues of entitlement to earlier
effective dates, which did meet the notification
requirements. The appeal was readjudicated in a November
2006 supplemental statement of the case (SSOC). As such, the
Board finds that any defect with respect to the timing of the
notice requirement was harmless error. Prickett v.
Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure
to afford statutory notice to claimant prior to initial
rating decision by issuing notification letter after decision
and readjudicating claim and notifying claimant of such
readjudication in the statement of the case).
The VCAA requires that the duty to notify is satisfied and
that claimants are given the opportunity to submit
information and evidence in support of their claim. Once
this has been accomplished, all due process concerns have
been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38
C.F.R. § 20.1102 (harmless error).
During the pendency of this appeal, on March 3, 2006, the
United States Court of Appeals for Veterans Claims (Court)
issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the notice requirements of 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b) apply to all five elements of a
service connection claim. Those five elements include:
(1) veteran status; (2) existence of a disability; (3) a
connection between the veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability. The Court held that "upon receipt of an
application for a service- connection claim, 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application."
Dingess/Hartman, 19 Vet. App. at 486. Additionally, this
notice must include notice that a disability rating and an
effective date for the award of benefits will be assigned if
service connection is awarded. Id.
As noted above, in the March 2006 SOC, the veteran was
provided with notice of the type of evidence necessary to
establish higher disability ratings and earlier effective
dates for the disabilities on appeal. Therefore, the Board
finds no prejudice to the veteran in proceeding with the
issuance of a final decision. In any event, any defects (as
to substance or timeliness) in the notice as to the assigned
disability ratings or effective dates are rendered moot as
they are not warranted.
VA has satisfied its duties to inform and assist the veteran
at every stage of this case. All available service medical
records as well as all VA and private medical records
pertinent to the years after service are in the claims file
and were reviewed by both the RO and the Board in connection
with the veteran's claims. The veteran testified at a
personal hearing in connection with his claims in April 2007.
VA has also assisted the veteran and his representative
throughout the course of this appeal by providing them with a
SOC and SSOC, which informed them of the laws and regulations
relevant to his claims. For these reasons, the Board
concludes that VA has fulfilled the duty to assist the
veteran in this case.
LAW AND ANALYSIS
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities, found
in 38 C.F.R., Part 4. The rating schedule is primarily a
guide in the evaluation of disability resulting from all
types of diseases and injuries encountered as a result of or
incident to military service. The ratings are intended to
compensate, as far as can practicably be determined, the
average impairment of earning capacity resulting from such
diseases and injuries and their residual conditions in
civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
for that rating. 38 C.F.R. § 4.7.
In considering the severity of a disability, it is essential
to trace the medical history of the veteran. 38 C.F.R. §§
4.1, 4.2, 4.41. Consideration of the whole-recorded history
is necessary so that a rating may accurately reflect the
elements of disability present. 38 C.F.R. § 4.2; Peyton v.
Derwinski, 1 Vet. App. 282 (1991). While the regulations
require review of the recorded history of a disability by the
adjudicator to ensure a more accurate evaluation, the
regulations do not give past medical reports precedence over
the current medical findings. Where an increase in the
disability rating is at issue, the present level of the
veteran's disability is the primary concern. Francisco v.
Brown, 7 Vet. App. 55, 58 (1994).
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in the parts of the
system, to perform the normal working movements of the body
with normal excursion, strength, speed, coordination, and
endurance. It is essential that the examination on which
ratings are based adequately portrays the anatomical damage
and the functional loss with respect to all of these
elements. In evaluating disabilities of the musculoskeletal
system, it is necessary to consider, along with the schedular
criteria, functional loss due to flare-ups of pain,
fatigability, incoordination, pain on movement, and weakness.
DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss
may be due to absence of part, or all, of the necessary
bones, joints and muscles, or associated innervation, or
other pathology and evidenced by visible behavior of the
claimant undertaking the motion. Weakness is as important as
limitation of motion, and a part that becomes painful on use
must be regarded as seriously disabled. 38 C.F.R. § 4.40.
Pain on movement, swelling, deformity or atrophy of disuse as
well as instability of station, disturbance of locomotion,
interference with sitting, standing and weight bearing are
relevant considerations for determination of joint
disabilities. 38 C.F.R. § 4.45. Painful, unstable, or
malaligned joints, due to healed injury, are entitled to at
least the minimal compensable rating for the joint.
38 C.F.R. § 4.59.
In this case, the veteran is currently assigned a 20 percent
disability evaluation for his shin splints of the right lower
extremity and 20 percent disability evaluation for his shin
splints of the left lower extremity, both effective May 2,
2005, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5262.
Under Diagnostic Code 5262, a 20 percent disability rating is
assigned for malunion of the tibia and fibula with slight
knee or ankle disability, a 30 percent disability rating is
contemplated for malunion of the tibia and fibula with marked
knee or ankle disability, and a 40 percent disability
evaluation is warranted for nonunion of the tibia and fibula
with loose motion requiring a brace.
For the sake of completeness, the Board also notes that the
veteran is service-connected for bilateral pes planus,
currently evaluated as 30 percent disabling, effective July
11, 2006, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code
5276. He is also service-connected for the residuals of a
left ankle fracture, currently evaluated as 20 percent
disabling, effective August 4, 2000, pursuant to 38 C.F.R.
§ 4.71a, Diagnostic Code 5271. In a June 2006 RO decision,
the veteran was denied service connection for a bilateral
knee disability, to include as secondary to his service-
connected shin splints of the right lower extremity and shin
splints of the left lower extremity and bilateral pes planus.
1. Increased ratings
In considering the evidence of record under the laws and
regulations as set forth above, the Board finds that the
veteran is not entitled to increased evaluations for his
service-connected shin splints of the right and left lower
extremities. The medical evidence of record does not show
the veteran to have malunion of the tibia and fibula with
marked knee or ankle disability of either his right or left
lower extremity.
In this regard, during a July 2005 VA examination in
connection with his claim, the veteran contended that he had
to rest his legs when mowing or playing sports and had
occasional cramps in his anterior thighs and shins. Other
than that, his symptoms had not changed from his prior
examination. Range of motion of his knees was from 0 to 140
bilaterally. (The Board notes that full range of motion of
the knee consists of 0 degrees extension and 140 degrees
flexion. 38 C.F.R. § 4.71, Plate II.). Further, his knees
were not unstable. The Achilles tendons were properly
aligned. Sensory testing revealed no defects. The veteran
did not use assistive devices. The diagnosis was shin
splints bilaterally and pes planus bilaterally. The opinion
was chronic leg pain related to his flatfeet and constant
working on a hard surface for long hours. Additionally,
range of motion was not painful and there were no flare-ups
or increased limitations following repetitive use.
Significantly, there was no edema, weakness, instability,
tenderness, or abnormal weight bearing. In fact, there was
no functional limitation on walking. The veteran had diffuse
hyperpigmentation of the skin of his anterior legs, which he
stated had always been present. DeLuca, 8 Vet. App. 202,
38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5262.
In an August 2005 private treatment record from O.A., the
veteran had tenderness in the posterior tibial tendons with
mild swelling and mild subfibular tenderness. The impression
was bilateral posterior tibial tendon dysfunction.
Significantly, it was noted that if his condition became
severe and debilitating, the use of a cane or brace could be
considered. Therefore, the veteran's level of disability in
August 2005 was not considered severe or debilitating.
During a June 2006 VA examination, the veteran was wearing
braces on his knees but it was not noted that they were
prescribed by a physician. His lower extremities were equal
in length and circumference and his motion at the knees was 0
to 120 degrees, dorsiflexion was 15 degrees, and plantar
flexion was 50 degrees. (Full range of ankle dorsiflexion is
from 0 to 20 degrees and full range of ankle plantar flexion
is from 0 to 45 degrees. 38 C.F.R. § 4.71, Plate II.)
During the August 2006 VA examination, dorsiflexion was 20
and plantar flexion was 30 degrees. There was no swelling,
heat, or tenderness. His shins had no tenderness and his
calves were not unusually tight, deformed, or abnormal.
DeLuca, 8 Vet. App. 202, 38 C.F.R. §§ 4.40, 4.45, 4.59,
4.71a, DC 5262. The veteran's neurological findings in his
lower extremities were normal. X-rays of the tibia and
fibula on the right and left showed normal bony quality with
vague sclerosis on his left distal fibula where he had an old
fracture 10 years prior, which healed without malunion. X-
rays of both knees showed normal bony architecture with
normal patellar alignment, position, and no sign of deformity
or injury. It was noted that he did not have shin splints
upon examination. Significantly, the examiner commented that
the veteran did not have malunion of his right or left tibia
or fibula. His leg pain was characterized as myofascial leg
aching, including the calves. The veteran was not found to
have range of motion or joint function additionally limited
by pain, fatigue, weakness or other lack of endurance
following repetitive use. DeLuca, 8 Vet. App. 202, 38 C.F.R.
§§ 4.40, 4.45, 4.59, 4.71a, DC 5262. His Achilles tendons
insert in a slight valgus, which was not unusual for flat
feet. The examiner opined that the veteran would have no
functional limitation on standing or walking.
As such, the veteran has not been shown to have met the
criteria for a 30 percent evaluations for his shin splints of
the left or right lower extremities under 38 C.F.R. § 4.71a,
Diagnostic Code 5262. As noted above, the Board finds it
significant that the examiner noted during the June 2006 VA
examination that the veteran did not have malunion of his
right or left tibia or fibula. Considering the above, the
Board concludes that any limitation of motion of the ankles
and knees is reflective of moderate degrees of disability.
Moreover, the veteran's level of disability was never
characterized as marked and it was specifically noted in
August 2005 that his ankle disability was not considered
severe. In fact, the Board also notes that the veteran was
found to have no functional limitation on standing or
walking. DeLuca, 8 Vet. App. 202, 38 C.F.R. §§ 4.40, 4.45,
4.59, 4.71a, DC 5262. As such, the Board finds, even after
considering the veteran's subjective complaints, that the
evidence more nearly approximates the criteria for 20 percent
ratings for moderate knee or ankle disability, and no higher.
DeLuca, 8 Vet. App. 202, 38 C.F.R. §§ 4.40, 4.45, 4.59,
4.71a, Diagnostic Code 5262. Accordingly, the criteria for
evaluations in excess of 20 percent for the veteran's
service-connected shin splints of his left lower extremity
and also for his shin splints of his right lower extremity
have not been met, and the benefits sought on appeal must be
denied.
Consideration has also been given to other potentially
applicable diagnostic codes. However, the veteran has not
been shown to have any of the necessary findings to warrant
ratings under any of the following codes throughout the
rating period.
Further, the grant of a rating in excess of 20 percent for
shin splints of the left lower extremity at any time during
the appeal period would result in a rating that would violate
the amputation rule as it would cause the veteran's lower
left extremity to be rated higher than the 40 percent rating
he would be assigned if his leg was amputated below the knee.
38 C.F.R. §§ 4.25, 4.68. In his regard, the veteran's 20
percent rating for the residuals of a left ankle fracture
combined with the 20 percent rating for shin splints of the
left lower extremity is 40 percent. 38 C.F.R. § 4.25.
Regarding a rating in excess of 20 percent for shin splints
of the right lower extremity, the Board notes that the
veteran is service-connected for bilateral pes planus,
currently evaluated as 30 percent disabling. A 20 percent
rating is assigned for unilateral severe pes planus pursuant
to 38 C.F.R. § 4.71a, Diagnostic Code 5276. As such, the
combined rating of 20 percent for shin splints of the right
lower extremity and unilateral severe pes planus is also 40
percent. 38 C.F.R. § 4.25. Therefore, a rating in excess of
20 percent disabling for shin splints of the right lower
extremity would violate the amputation rule for the right
lower extremity as well as the left lower extremity.
In reaching this decision, the potential application of
various provisions of Title 38 Code of Federal Regulations
have been considered, whether or not they were raised by the
veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In
particular, the Board has considered the provisions of 38
C.F.R. § 3.321(b)(1). In this case, however, there has been
no showing that the veteran's service-connected shin splints
of the right and left lower extremity have caused marked
interference with employment beyond that contemplated by the
schedule for rating disabilities, necessitated frequent
periods of hospitalization, or otherwise renders impractical
the application of the regular scheduler standards utilized
to evaluate the severity of his disability. During the VA
July 2005 VA examination, the veteran noted that his job
required him to stand on his feet on a concrete floor for up
to twelve hours a day. The veteran claimed that he had to
leave work early or call in approximately three or four times
in the past 12 months in order to let his legs rest and
relieve the aching. During a June 2006 VA examination, the
veteran stated that he missed two to three days in the last
six months due to increased pain in his legs. During the
August 2006 VA examination, the veteran stated that he missed
four or five days of work per month secondary to his foot
pain. However, these findings were already contemplated in
the assigned rating. Moreover, it was not shown that he was
medically required to leave work. As such, marked
interference with employment beyond that contemplated by the
rating schedule has not been shown. Therefore, the Board
finds that the requirements for an extraschedular evaluation
for the veteran's service-connected shin splints of the right
and left lower extremity under the provisions of 38 C.F.R. §
3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App.
337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995).
2. Earlier effective dates
Under VA laws and regulations, a specific claim in the form
prescribed by VA must be filed in order for benefits to be
paid or furnished to any individual under laws administered
by the VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). In
general, the effective date of an award based on an original
claim or a claim reopened after final adjudication of
compensation shall be fixed in accordance with the facts
found, but shall not be earlier than the date of the receipt
of the application. 38 U.S.C.A. § 5110(a); 38 C.F.R. §
3.400. Generally, the effective date of an award of
disability compensation based on an original claim shall be
the date of receipt of the claim or the date entitlement
arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R.
§ 3.400. However, if the claim is received within one year
after separation from service, the effective date of an award
of disability compensation shall be the day following
separation from active service. 38 U.S.C.A. § 5110(b)(1); 38
C.F.R. § 3.400(b)(2)(i). The effective date of an award of
disability compensation based on a claim to reopen after a
final disallowance shall be the date of receipt of the new
claim or the date entitlement arose, whichever is later. 38
U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(ii), (r).
For an increase in disability compensation, the effective
date will be the earliest date as of which it is factually
ascertainable that an increase in disability had occurred if
claim is received within 1 year from such date otherwise,
date of receipt of claim. 38 U.S.C.A. § 5110; 38 C.F.R. §
3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511
(1997); Servello v. Derwinski, 3 Vet. App. 196 (1992).
In VAOPGCPREC 12-98 (Sept. 23, 1998), General Counsel noted
that 38 C.F.R.
§ 3.400(o)(2) was added to permit payment of increased
disability compensation retroactively to the date the
evidence establishes the increase in the degree of disability
had occurred. That section was intended to be applied in
those instances where the date of increased disablement can
be factually ascertained with a degree of certainty. It was
noted that this section was not intended to cover situations
where disability worsened gradually and imperceptibly over an
extended period of time.
"Claim" is defined broadly to include a formal or informal
communication in writing requesting a determination of
entitlement or evidencing a belief in entitlement to a
benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App.
32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199
(1992). Any communication or action, indicating an intent to
apply for one or more benefits under laws administered by the
VA from a claimant may be considered an informal claim. Such
an informal claim must identify the benefits sought. Upon
receipt of an informal claim, if a formal claim has not been
filed, an application form will be forwarded to the claimant
for execution. 38 C.F.R. § 3.155(a). To determine when a
claim was received, the Board must review all communications
in the claims file that may be construed as an application or
claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134
(1992).
In considering the evidence of record under the laws and
regulations as set forth above, the Board finds that May 2,
2005, is the correct date for the assignment of the 20
percent disability evaluations for the veteran's service-
connected shin splints of the right lower extremity and shin
splints of the left lower extremity. Although the veteran
has alleged that he is entitled to an earlier effective date
prior to May 2, 2005, for the assignment of the 20 percent
disability evaluations for his service-connected disabilities
on appeal, there is no basis under the governing legal
criteria to establish that earlier effective dates are
warranted.
The veteran first presented his claims for service connection
for shin splints of the right lower extremity and shin
splints of the left lower extremity in a VA Form 21-526,
Veteran's Application for Compensation or Pension, received
on May 17, 1996. A rating decision dated in July 1996
granted service connection for shin splints of the right and
left lower extremity and assigned a 10 percent disability
evaluation effective from May 12, 1996. The veteran was
afforded examinations in May 1996, July 1998, September 2000
and rating decisions dated in July 1998 and February 2001
continued the 10 percent disability evaluations. The veteran
was notified of these decisions and of his appellate rights,
but he did not file a notice of disagreement with either
decision. In general, rating decisions that are not timely
appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. §
20.1103. The veteran subsequently filed claims, received by
VA on May 2, 2005, for increased evaluations for his service-
connected shin splints of the right and left lower
extremities, and an October 2005 rating decision increased
the evaluations to 20 percent effective from May 2, 2005.
After reviewing the evidence of record, the Board finds that
the veteran first presented his claims for increased
evaluations for shin splints of the right and left lower
extremity in a statement received on May 2, 2005. The record
does not contain any statement or action dated earlier than
May 2, 2005, indicating intent to file claims for an
increased evaluations pertaining to these disabilities. In
fact, the May 2005 statement was the first document submitted
by the veteran following the issuance of the February 2001
rating decision pertaining to these disabilities. The Board
does acknowledge statements dated in April 2004 that
specifically express intent to file a claim for bilateral pes
planus and back problems, but he did not mention his service-
connected shin splints. Additionally, in a June 2004
statement, the veteran referenced his shin splints when
referring to his claim for bilateral flat feet, and in his
October 2004 NOD for the noncompensable rating assigned his
pes planus, he mentioned pain in his legs. However, not even
a liberal reading of those documents indicates intent to file
a claim for an increase for service-connected shin splints of
the right lower extremity and left lower extremity. As such,
intent to file a claim was not expressed until the May 2,
2005, statement.
The Board observes that the veteran did seek treatment for
his shin splints within one year prior to his claim received
on May 2, 2005. VA regulations provide that once a formal
claim for pension or compensation has been allowed, receipt
of reports of outpatient or hospital examination or admission
to a VA hospital will be accepted as an informal claim for
increased benefits or an informal claim to reopen. However,
the regulations provide the effective date will be the
earliest date as of which it is factually ascertainable that
an increase in disability had occurred when a claim is
received within one year from such date otherwise, date of
receipt of claim. 38 U.S.C.A. § 5110; 38 C.F.R. §
3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511
(1997); Servello v. Derwinski, 3 Vet. App. 196 (1992). As
such, the Board must determine whether it was factually
ascertainable that the medical evidence reflected that the
veteran was entitled to 20 percent disability evaluations for
his service-connected shin splints of his bilateral
extremities prior to May 2, 2005.
As noted above, the veteran's shin splints are currently
evaluated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code
5262. Under that diagnostic code, a 20 percent disability
rating is assigned for malunion of the tibia and fibula with
slight knee or ankle disability.
The medical evidence of record does not indicate that the
veteran's service- connected shin splints of the right and
left lower extremities were productive of malunion of the
tibia and fibula with slight knee or ankle disability prior
to May 2, 2005. As such, the Board finds that it was not
factually ascertainable that the veteran satisfied the
necessary criteria for a 20 percent disability evaluation for
his service-connected shin splints of the right and left
lower extremities for the period prior to May 2, 2005. In
this regard, in a May 2004 VA treatment entry, the veteran
returned to follow up on an emergency room visit for pain in
swelling in his legs and ankles. He complained of increased
pain and swelling in his ankles and shins, more on the right.
Importantly, however, it was noted that an orthopedic
evaluation had not revealed primary ankle or leg problems.
Additionally, conservative treatment had helped reduce the
symptoms but they still remained at a lower level. Upon
observation, there was no edema in the legs. The veteran's
ankles were a little stiff and there was mild tenderness over
the medial malleolus. The examiner thought that addressing
the veteran's service-connected flat feet was likely to be
the best way to address long term symptom relief. During an
August 2004 VA examination for his feet, the Board finds it
significant that the range of motion from his ankles to his
toes as well as the Achilles alignments were within normal
limits. His gait was abducted but within normal limits.
There were no functional limitations on standing and walking.
Further, there was no pain on manipulation. As such, he was
not shown to have a moderate knee or ankle disability before
May 2, 2005. DeLuca, 8 Vet. App. 202, 38 C.F.R. §§ 4.40,
4.45, 4.59, 4.71a, Diagnostic Codes 5262. Accordingly, the
criteria for an earlier effective date for the assignment of
20 percent evaluations for the veteran's service-connected
shin splints of his bilateral lower extremities have not been
met, and the benefit sought on appeal must be denied.
ORDER
Entitlement to an increased evaluation for shin splints of
the right lower extremity, currently evaluated as 20 percent
disabling, is denied.
Entitlement to an increased evaluation for shin splints of
the left lower extremity, currently evaluated as 20 percent
disabling, is denied.
An earlier effective date prior to May 2, 2005, for the
assignment of an evaluation of 20 percent for service-
connected shin splints of the right lower extremity is
denied.
An earlier effective date prior to May 2, 2005, for the
assignment of an evaluation of 20 percent for service-
connected shin splints of the left lower extremity is denied.
____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs